United States v. Douglas ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4796
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RODNEY WALTER DOUGLAS, a/k/a Randy,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-75)
Submitted: March 15, 2006 Decided: April 4, 2006
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Rose Mary Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rodney Walter Douglas pled guilty to felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2000). He
received a 70-month sentence. On appeal, his attorney filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
raising the issue of whether the court erred in assessing a four-
level enhancement under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(5) (2002). By way of supplemental briefing, both
parties have addressed the impact of United States v. Booker, 543
U.S. 220 (2005). Finding no reversible error, we affirm.
On appeal, Douglas argues that the district court erred
in assessing a four-level enhancement under USSG § 2K2.1(b)(5).
Because Douglas did not object below, review is for plain error.
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, an appellant must establish that an error
occurred, that it was plain, and that it affected his substantial
rights. United States v. Olano, 507 U.S. 725, 731-32 (1993);
Hughes, 401 F.3d at 547-48. If an appellant meets these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Hughes, 401 F.3d at 555(internal quotation marks and citation omitted).
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Section 2K2.1(b)(5) provides for a defendant’s offense
level to be enhanced by four levels if he used or possessed a
firearm “in connection with another felony offense.” “The purpose
of this enhancement is to ensure that a defendant receives more
severe punishment if, in addition to committing a firearms offense
within the scope of § 2K2.1, he commits a separate felony offense
that is rendered more dangerous by the presence of a firearm.”
United States v. Blount, 337 F.3d 404, 406 (4th Cir. 2003). We
have reviewed the record, and we find no plain error in the court’s
imposition of this enhancement.
This court has identified two types of Booker error: a
violation of the Sixth Amendment, and a failure to treat the
sentencing guidelines as advisory. United States v. Hughes, 401
F.3d 540, 552 (4th Cir. 2005). A Sixth Amendment error occurs when
the district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Booker, 543 U.S. at 245. Douglas did not raise a Sixth
Amendment challenge or object to the mandatory application of the
guidelines in the district court; review is therefore for plain
error. Hughes, 401 F.3d at 547. Because Douglas’ sentence was not
enhanced based on any controverted fact, there was no Sixth
Amendment violation.
To the extent that Douglas challenges the district
court’s application of the sentencing guidelines as mandatory, we
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also find no plain error. To establish plain error, a defendant
must “demonstrate, based on the record, that the treatment of the
guidelines as mandatory caused the district court to impose a
longer sentence than it otherwise would have imposed.” United
States v. White, 405 F.3d 208, 224 (4th Cir.), cert. denied, 126 S.
Ct. 668 (2005). In White, we determined that “the record as a
whole provide[d] no nonspeculative basis for concluding that the
treatment of the guidelines as mandatory ‘affect[ed] the district
court’s selection of the sentence imposed.’” Id. at 223 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)). Thus, we
concluded that the error did not affect White’s substantial rights
and affirmed the sentence. Id. at 225. Likewise, the record here
provides no nonspeculative basis suggesting that the district court
would have sentenced Douglas differently had the guidelines been
advisory instead of mandatory.
In accordance with Anders, we have reviewed the entire
record, considered Douglas’ pro se supplemental briefs, and have
found no meritorious issues for appeal. Accordingly, we affirm.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
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was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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